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29 Crim. Just. 30 (2014-2015)
Judicial Imposition of the Trial Tax

handle is hein.journals/cjust29 and id is 32 raw text is: Judicial Imposition of the Trial Tax BY J. VINCENT APRILE II A ccording to reliable estimates, 90-95 percent of criminal cases in both state and federal courts are resolved through guilty pleas. Jury and bench trials occur in a very small percent- age of criminal cases, regardless of the jurisdiction. Analysts have emphasized that this disparity is the result of plea bargaining and the enormous lever- age prosecutors have in that process. But a related and key concern is the impact that judges have in imposing a trial tax on those criminal defendants who assert their constitutional rights to trials and appellate review of their convictions and sentences. Trial tax is a euphemism for a judge imposing a more severe sentence on a defendant, in whole or in part, because the accused, who elected to reject the prosecution's plea agreement and go to trial, wasted judicial and prosecutorial resources involved in a trial. The concept can be expanded to situa- tions where, following an unsuccessful appeal, the trial judge opts to treat the defendant more harshly because the appeal, like the trial, squandered simi- lar resources. In a Kentucky case where a convicted defen- dant filed a motion for shock probation following an unsuccessful appeal, the trial judge offered this explanation, at least in part, for his decision to deny the defendant a probated sentence: With hindsight it appears quite clear that the defendant was engaged in trafficking of methamphetamine, and the jury found beyond a reasonable doubt that she was guilty of same. It further appears from the record that a two-day mistrial preceded the two-day trial at which she was found guilty. That was followed by a very lengthy appellate pro- cess. In summary, she was clearly guilty but fought tooth and nail against the charges. Of J. VINCENT APRILE II retired after 30 years as a public defender with the Kentucky Department of Public Advocacy and joined Lynch, Cox, Gilman & Goodman, P S.C., in Louisville, Kentucky, where he specializes in criminal law, both trial and appeal, employment law, and litigation. He is past-chair of the editorial board of Criminal Justice magazine and a regular columnist. He is the recipient of the 2012 Louisville (Kentucky) Bar Association's Distinguished Service Award. course, she had every right to contest the indictment. However, she now seeks a sec- ond bite at the apple. Our judicial system would grind to a halt if even a small percentage of defendants charged with similar offenses should pursue the same course as she. Her efforts to escape charges justly brought against her diverted significant resources of the Commonwealth. The Court is not unmindful that the prosecution presents in almost all cases offers long before trial that are generally lenient compared to the sentences our juries customarily recommend. This is a judicial admission that this denial of proba- tion was predicated at least in part on the imposition of the trial tax. In an individualized sentencing equation, should a defendant's decision to exercise state and federal constitutional rights to a trial and an appeal ever be a factor to hold against the defendant, as this judge explicitly did? Should a judge explain at arraign- ment that if the accused chooses a trial rather than a plea of guilty and is convicted, the court will in its sentencing decision penalize the defendant for not being vindicated at trial, despite the defendant's constitutional right to demand a trial? In deciding an individualized sentence, a court may justify leniency because of the defendant's guilty plea and whatever other factors, such as remorse, might accompany the admission of guilt. But that leniency does not justify a converse sentencing practice of punishing a defendant for pleading not guilty and thereby depleting court time and resources. A lack of remorse, for exam- ple, is not a reasonable inference to draw from the exercise of the right to demand a trial guaranteed to every accused, just as guilt is not a permissible inference to draw from a defendant's election not to testify at trial. When a sentencing judge bases a finding of a lack of remorse on the mere election to plead not guilty, this constitutes a penalty for asserting a protected constitutional right. A judge has the right to consider the evidence produced at trial in calculating the defendant's sentence, but that prerogative does not justify the judge simply relying on a conviction, whether of the charged offense or a lesser included crime, as a basis for imposing the trial tax on the theory that the trial apparently wasted governmental resources. The trial tax is usually imposed before an appel- late court has reviewed the trial and affirmed the conviction and sentence. A system of appeal as CRIMINAL JUSTICE U Spring 2014 30

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